MOSES Petition for Writ of Certiorari FINAL

8/14/2019 MOSES Petition for Writ of Certiorari FINAL

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IN THE SUPREME COURT

STATE OF GEORGIA

SUPREME COURT DOCKET NUMBER _____________

COURT OF APPEALS CASE NUMBER A07A1474

CHRISTOPHER MOSES ]

Petitioner, ] Supreme Court Case No.

v. ]

TRATON CORP., et al. ] ______________________

Respondent. ]

PETITION

FOR WRIT OF CERTIORARI

PETITIONER:

Christopher L. Moses

COUNSEL FOR PETITIONER:

Sam S. Han

Georgia Bar Number 322284

SAM HAN, P.C.

330 Bloombridge Way

Marietta, GA 30066

+1 (404) 514-8237

[email protected]

Robert K. Finnell


THE FINNELL FIRM

Suite 200

PO Box 63

1 West Fourth Avenue

Rome, GA 30161-3003

Charles B. Pekor


Daniel E. DeWoskinGeorgia Bar Number 220327

PEKOR & DeWOSKIN, LLC

Lenox Center

3355 Lenox Road, NE

Suite 450

Atlanta, Georgia 30326



Page 1


STATE OF GEORGIA

CHRISTOPHER MOSES ]

Petitioner, ] Supreme Court Case No. ________

v. ] Court of Appeals Case No. A07A1474

TRATON CORP., et al. ]

Respondent. ]

PETITION

FOR WRIT OF CERTIORARI

Pursuant to Rule 38(2) of the Rules of this Honorable Court,

Petitioner hereby petitions this Honorable Court for a writ of

certiorari to review the opinion and judgment in Moses v. Traton

Corp. et al., Court of Appeals Case No. A07A1474,1dated July 10,

2007, Motion for Reconsideration denied on July 30, 2007.2

The issues presented in this petition are of great concern,

gravity, and importance to the public, and this petition should

be granted because the Opinion from the Court of Appeals: (a)

violates public policy; (b) produces manifestly unjust results;

(c) contravenes Georgia's constitutional and statutory scheme;

(d) departs significantly from decades of legal precedent; and

(e) defies common sense.

The issues on appeal are:

(A) Whether the Court of Appeals erred in ruling that a

homeowner has no right to prevent others from

repeatedly damaging the yard that adjoins the home,

when the damaged yard affects the value of the home,and the homeowners' association (HOA) has threatened to

impose financial penalties on the homeowner for the

damaged yard (see Exh. C for photograph of damaged

yard); and

1Attached hereto as Exh. A.

2Attached hereto as Exh. B.



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(B) Whether the Court of Appeals erred in ruling that the

County, rather than the homeowner, is liable for

maintaining a significant portion of the homeowner's

yard if that portion is located within a County-owned

right-of-way.

This honorable Court should grant this Petition for

Certiorari because of the negative repercussions that are left in

the wake of the Court of Appeals' decision. Namely, the Opinion

of the Court of Appeals:

(1) eviscerates every homeowner's ability to prevent others

from damaging the yard that adjoins a homeowner's

home;3

(2) requires the County to maintain a significant portion

of the yard that adjoins everyone's home, despite the

fact that those yards have always been maintained by

homeowners;

(3) effectively abrogates a host of statutory provisions,

including OCGA §§ 51-9-1, 51-9-3, 51-9-10, and 44-5-

165;

(4) disregards legal precedent by affirming the lower

court's impermissible resolution of genuine issues of

material facts on summary judgment; and

(5) prevents homeowners' associations from requiring

homeowners to properly maintain the yard that adjoins

the home, thereby effectively nullifying a contract

between two private parties.

Insofar as the Court of Appeals departs significantly from

both the spirit and letter of the law, and insofar as such a

departure produces manifestly unjust results and is contrary to

public policy, Petitioner respectfully petitions this Honorable

Court to GRANT Certiorari.

3A picture of Petitioner's home and the 13-foot-wide tract of

damaged land, which is the property in question, is attached

hereto as Exh. C. This picture is found in the record at R .



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I. INTRODUCTION

An individual's property right is of such paramount

importance that both the U.S. Constitution and the Georgia

Constitution are dedicated to the protection of private property.

No fewer than eleven (11) separate paragraphs of the Georgia

Constitution4expressly address individual property rights.

Particularly, the Georgia Constitution emphasizes that protection

of property is "the paramount duty of government[,]"5and this

very Court has repeatedly held that the "right of the humblest

individual in the enjoyment of his property must be protected."6

So important are property rights that the Georgia

Legislature has codified property-related torts, thereby

providing statutory causes of action for any interference with an

individual's property rights.7

These property rights extend by

statute to rights-of-way.8

Despite the protections afforded by Georgia's Constitution

and statutes, and despite this Court's mandate that the humblest

individual's property rights must be protected, the Court of

Appeals nevertheless holds that a homeowner has no right to

493-510.4 See, e.g., Georgia Constitution, Art. I, § I, ¶¶ I, II, IV,

XXVI, and XXVII; Art. III, § III, ¶ I; Art. VII, § I, ¶¶ II and

III; Art. VII, § II, ¶¶ II and IV; and Art. IX, § VII, ¶ III.5Georgia Constitution, ¶ II.

6 Williams v. LaGrange, 213 Ga. 241 (1957); Ammons v. Central of

Georgia Railway Co., 215 Ga. 758 (1960).7OCGA §§ 51-9-1, 51-9-2, 51-9-3, and 51-9-10.

8OCGA § 51-9-10.



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prevent others from continuously destroying the land which

adjoins the homeowner's home and which detrimentally affects the

value of that home.9

This is so, despite the fact that the

homeowners' association has obligated the homeowner to maintain

the damaged property, under threat of financial penalties to his

home.10

Even a cursory examination of the land in question (see,

Exh. C) removes any doubt that the homeowner, in fact, actually

possesses the entire damaged yard and is responsible for

maintaining the entire yard. The homeowners' actual possession

of the yard is further evidenced by a plethora of objective

evidence, which is wholly ignored by the Court of Appeals.

Indeed, the issue of actual possession is a factual inquiry that

is improper for disposal by summary judgment, yet the Court of

Appeals affirms the lower court's impermissible fact-finding

exercise.

Despite the homeowners' actual possession of the yard, the

Court of Appeals shifts the responsibility for maintaining the

yard from homeowners to the County. In doing so, the Court of

Appeals simultaneously eviscerates every homeowner's ability to

protect the yard that adjoins the home, obligates the County to

maintain that portion of every homeowner's yard, and nullifies

9The subject property is shown in Exh. C, attached (from the

trial court record at R. 493-510).10 R . 66-67 (First Moses Affidavit, ¶¶ 4-8); See, Exh. D (Letter

from Homeowners' Association, attached to First Moses Affidavit

at R . 66-67).



Page 5

the intent of the parties to the subdivision covenants.

Such a result: (a) contravenes Georgia's constitutional and

statutory scheme; (b) violates public policy; (c) produces a

manifestly unjust result; (d) significantly departs from decades

of legal precedent; and (e) defies common sense.

For these reasons, Petitioner respectfully requests this

Honorable Court to GRANT Certiorari.



Page 6

II. SUBJECT MATTER OF THE LAWSUIT



Page 7

III. FACTS

Petitioner's home is situated within a covenanted

subdivision.11 Given the ongoing construction within the

subdivision, the builder also functions as the Home Owners'

Association (HOA).12

Since the purchase of his home, Petitioner has always

maintained immaculate care of the lawn that is attached to his

home,13

including the right-of-way that forms a part of his

yard.14

As shown in Exh. C, the right-of-way is visibly

indistinguishable from Petitioner's recorded lot and adjoins the

lot.15

In fact, homeowners believe that the entire yard is in

the homeowner's possession, and, hence, the homeowners maintain

the entire yard in order to protect the value of their homes.

11 R . 1408; T. 4:1-4; T. 14:8-9. R . 308, 323 (Admitted by

Defendant; see, Complaint and Answer, ¶ 28). See, also, R .

335, 346 (Plaintiff's First Request for Admissions and

Defendant's Response to First Request for Admissions

(collectively "Traton's First Admissions"), ¶ 2, Attached to

Plaintiff's Motion for Summary Judgment as Exhs. D and E).12 R . 1411; T. 4:6-9; T. 14:14-21. R . 371, 403 (Traton's Second

Admissions, ¶ 60). See, also, R . 423-461 (Declaration of

Covenants, Conditions and Restrictions for Lakefield Manor

Subdivision ("Covenant") (stating that the Declarant is Poston

Properties, Inc., which is an affiliate of Traton Corp),

Attached to Plaintiff's Motion for Summary Judgment as Exh. H).13 T. 19:2-4; T. 58:11-22. R . 68 (Affidavit of Christopher Moses

in Support of Plaintiff's Opposition to Defendants' Motion to

Dismiss ("First Moses Affidavit"), ¶¶ 19-20).14 T. 61:8-9 (The right of way extends thirteen (13) feet beyond

the curb into Petitioner's yard).15 T.58:11-12; T. 65:21. R . 1123-1125 (Order, ¶¶ 20 ("right-of-

way adjacent to his property"), 23, and 28 ("right-of-way

adjoining Plaintiff's property")).



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Over the course of eight (8) months, during continued

development of the subdivision, the builder's large construction

vehicles repeatedly drove over Petitioner's yard, thereby

damaging the yard.16

Petitioner complained to the builder about the damage,17

and

requested the builder to stop damaging the yard.18

Rather than

repairing the damage that it caused, the builder (acting as the

HOA) cited Petitioner's damaged yard as being in violation of the

subdivision covenants.19

In other words, the builder damaged the

yard and then cited that very damage, which the builder had

caused, as being a violation of the covenants, thereby

threatening to impose monetary fines on the homeowner if the

homeowner failed to repair the damage.20

In an effort to stop the ongoing damage to the yard,

Petitioner filed this lawsuit in Cobb County Superior Court on

October 13, 2005.21

16 R . 1412; T. 4:13-17; T. 14:21-23. R . 373-374, 407(Admitted by

Defendant, Traton's Second Admissions, ¶¶ 95-103). See, Exh.

C, attached hereto.17 R . 1413; R . 368, 400 (Admitted by Defendant, Traton's Second

Admissions, ¶ 24).18 R . 1413; T. 15:1-4. R . 336, 348 (Admitted by Defendant,

Traton's First Admissions, ¶ 15).19

R . 1418-1420; T. 6:11-17; T. 11:16-18; T. 15:16-21. R . 368-370, 400-402 (Admitted by Defendant, Traton's Second

Admissions, ¶¶ 25 and 27-55). R . 66-67 (First Moses Affidavit,

¶¶ 4-8).20 R . 1418-1420; T. 6:11-17; T. 11:16-18; T. 15:16-21. R . 368-

370, 400-402 (Admitted by Defendant, Traton's Second


¶¶ 4-8).21 R . 1423; T. 7:9-10; T. 15:25-16:1. R . 337, 351 (Admitted by





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doing so, the Court of Appeals shifted the liability for

maintaining a significant portion of every homeowner's yard from

the homeowners to the County.

On July 19, 2007, Petitioner filed a Motion for

Reconsideration with the Court of Appeals, noting that the Court

of Appeals overlooked a material fact in the record, and also

overlooked a statute that is controlling as authority and which

would require a different judgment from that rendered.

On July 30, 2007, Petitioner's Motion for Reconsideration

was denied, and, on August 07, 2007, Petitioner filed with the

Court of Appeals his Notice of Intention to Petition for Writ of

Certirorari.

Petitioner now files this Petition for Writ of Certiorari.

IV. ARGUMENT

A. The Opinion of the Court of Appeals Contravenes

Georgia's Constitutional and Statutory Scheme, Departs

Substantially from Decades of Precedent, Violates

Public Policy, and Defies Common Sense

The Opinion of the Court of Appeals contravenes Georgia's

constitutional and statutory scheme, departs substantially from

decades of precedent, is contrary to public policy, and defies

common sense.

1. The Opinion of the Court of Appeals Contravenes

Georgia's Constitutional and Statutory Scheme, and

also Departs Significantly from Decades of Legal

Precedent

As noted above, the Georgia Constitution and this Court



Page 11

consider an individual's property rights to be of paramount

importance.23

Given that an individual's home is of such

importance, Georgia provides statutory remedies for any

interference with an individual's property rights.

For example, OCGA § 51-9-1 recites that "[t]he right of

enjoyment of private property being an absolute right of every

citizen, every act of another which unlawfully interferes with

such enjoyment is a tort for which an action shall lie."24

Rather than requiring ownership of property, OCGA § 51-9-3

permits those in bare possession to bring an action for

trespass.25

The issue of whether one actually possesses land is

a question of fact that cannot be disposed of on summary

judgment.26

Despite Georgia's constitutional and statutory scheme, which

emphasizes the importance of an individual's property rights, the

Court of Appeals deprives a homeowner of the right to bring an

action to prevent damage to land, which indisputably affects the

value of the home and for which the homeowner has actual

possession. Even though actual possession is a question of fact

23Georgia Constition, Art. I, § I, ¶ II. Williams v. LaGrange,

213 Ga. 241 (1957); Ammons v. Central of Georgia Railway Co.,

215 Ga. 758 (1960).24 OCGA § 51-9-1 (emphasis supplied).25

OCGA § 51-9-3 ("The bare possession of land shall authorize

the possessor to recover damages from any person who wrongfully

interferes with such possession in any manner").26 Housing Authority of Atlanta v. Famble, 170 Ga. App. 509, 520

(1984); Friendship Baptist Church, Inc. v. West, 265 Ga. 745,746 (1995) (If the possession is not clearly evident, as inenclosure or cultivation, then "possession becomes a question of



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that cannot be disposed of on summary judgment,27

the Court of

Appeals wholly discounts the objective evidence of actual

possession28

and affirms the lower court's summary judgment, that

homeowners cannot protect their yards.

By ruling as it did, the Court of Appeals obliterates a

homeowner's ability to prevent others from damaging property

which directly affects the value of the home. In other words,

contrary to Georgia's constitutional and statutory scheme, which

mandates protection of even the "humblest individual in the in

the enjoyment of his property,"29 the Court of Appeals deprives

homeowners of the very protection that the Georgia Constitution

seeks to provide.

Here, the homeowners' association (HOA) obligates Petitioner

to maintain the damaged land, including the damaged sod, turf,

and grass in the right-of-way.30

Petitioner's neighbors expect

fact for the jury").27 Housing Authority of Atlanta v. Famble, 170 Ga. App. 509, 520

(1984); Friendship Baptist Church, Inc. v. West, 265 Ga. 745,746 (1995) (If the possession is not clearly evident, as inenclosure or cultivation, then "possession becomes a question offact for the jury").

28 Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga.

App. LEXIS 811, *8 (July 10, 2007) ("Factual Indicia of

Possession . . . . [T]he facts Moses points to, such as his

mowing of the area, or another property owners' opinions with

respect to Moses's legal interest in the land, are notsufficient to create in Moses a legally cognizable possessory

interest in the public right of way.").29 Williams v. LaGrange, 213 Ga. 241 (1957); Ammons v. Central of

Georgia Railway Co., 215 Ga. 758 (1960).30 R . 1418-1420; T. 6:11-17; T. 11:16-18; T. 15:16-21. R . 368-

370, 400-402 (Admitted by Defendant, Traton's Second


¶¶ 4-8).



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Petitioner to maintain the damaged yard.31

Petitioner has been

maintaining the right-of-way portion of his yard since the day

that he bought his home. Indeed, every Georgia homeowner

maintains the entire yard, including the sod, turf, and grass in

the right-of-way. This is because rights-of-way often extend

well into the yard from the curb.32

For this very reason, the

homeowners actually possess the entire yard "by enclosure,

cultivation, or any use and occupation of the lands[.]"33

The Court of Appeals nevertheless holds that neither

Petitioner nor any other homeowner has any obligation to maintain

the 13-foot-wide portion of the lawn that extends to the curb.34

Consequently, the Court of Appeals holds that Petitioner has no

standing to sue for damage done to that portion of Petitioner's

yard. Such a ruling is contrary to Georgia's statutory scheme

that requires only "bare possession of land,"35

and incompatible

with Georgia's constitution, which considers an individual's

property rights to be of paramount importance.

Furthermore, while OCGA § 51-9-10 provides that an "unlawful

interference with a right-of-way or a right of common constitutes

31

R . 66-67 and 71-72.32 T. 61:8-9 (The right of way extends thirteen (13) feet beyond

the curb into Petitioner's yard).33

OCGA § 44-5-165.34 Moses v. Traton Corp., et al., Appeal No. A07A1474, 2007 Ga.

App. LEXIS 811, *8 (July 10, 2007).35

OCGA § 51-9-3 ("The bare possession of land shall authorize

the possessor to recover damages from any person who wrongfully

interferes with such possession in any manner").



Page 14

a trespass to the party entitled thereto[,]"36

the Court of

Appeals limits the statutory reach of OCGA § 51-9-10 to only the

rights of ingress and egress.37

This is contrary to precedent:

The damages, therefore, that an individualmay recover for injuries to his property need

not necessarily be caused by acts amounting

to trespass, or by an actual physical

invasion of his real estate; but if his

property be depreciated in value by his being

deprived of some right of use or enjoyment

growing out of and appurtenant to his estate

as the direct consequence of the construction

and use of any public improvement, his right

of action is complete, and he may recover to

the extent of the injury sustained.38

It makes no sense that OCGA § 51-9-10 permits a homeowner to

recover for the lesser act of hindering access to a right-of-way

with no physical damage to the right-of-way, yet prohibits a

homeowner from recovering for the greater harm of actual physical

damage to the right-of-way. Such a construction of OCGA § 51-9-

10 is contrary to established precedent, which permits recovery

for "being deprived of some right of use or enjoyment growing out

of and appurtenant to [a homeowner's] estate."39

For at least these reasons, Petitioner respectfully requests

this Honorable Court to GRANT Certiorari.

36OCGA § 51-9-10.


App. LEXIS 811, *6 (July 10, 2007).38 Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App.

778 (1961) (emphasis supplied).39 Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App.

778 (1961).



Page 15

2. The Opinion of the Court of Appeals Violates

Public Policy

In addition to contravening Georgia's constitutional and

statutory scheme, the Opinion of the Court of Appeals violates

public policy. In holding that homeowners have no obligation to

maintain the right-of-way portion of their respective yards,40

the Court of Appeals now obligates the County to maintain a

significant portion of every homeowner's yard.41

Prior to the decision by the Court of Appeals, the counties

have never mowed, weeded, cultivated, landscaped, or maintained

the right-of-way portion of any homeowner's lawn. The reason

being that the counties are not equipped with sufficient funds or

personnel to maintain even a small portion of everyone's yard.

In view of the decision by the Court of Appeals, it is now

evident that all of the counties have been unjustly enriched by

every Georgia homeowner, insofar as the homeowners have been

maintaining county-owned public property at the homeowner's

expense.

Moreover, going forward, the Court of Appeals' decision

exposes the counties to legal action by the homeowners, should

the homeowners wish for the counties to begin landscaping and

maintaining the county-owned rights-of-way that form a portion of


App. LEXIS 811, *8 (July 10, 2007).41 T. 41 ("Mr. Moore: Ultimately, your honor, that property is

owned by the public. It's Cobb County public right-of-way.

Ultimately, Cobb County is responsible to maintain its right-

of-way, the full width of its right-of-way.").



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each homeowner's yard.

Surely, burdening the counties with the maintenance of every

homeowner's yards cannot be an acceptable public policy. For

this additional reason, Petitioner respectfully requests this

Honorable Court to GRANT Certiorari.

3. The Opinion of the Court of Appeals Defies Common

Sense

The Opinion of the Court of Appeals also defies common

sense. As Justice Frankfurter noted, and as the Georgia courts

have recognized, "[t]here comes a point where th[e] Court should

not be ignorant as judges of what we know as men."42

Here, the

Court of Appeals did exactly what Justice Frankfurter cautioned

against. A review of the damaged yard, shown in Exh. C, clearly

evidences that the damaged land is an integral portion of the

homeowner's yard, irrespective of whether or not it is a right-

of-way. The Court of Appeals defies common sense by holding that

homeowners cannot prevent others from repeatedly damaging that

portion of the yard, especially since it is undisputed that the

damaged land diminishes the value of the home, and the damage

affects the homeowner's enjoyment of his home.43

42 Byrom v. Felker et al., 137 Ga. App. 400, 224 SE2d 72 (1976),

citing Watts v. Indiana, 338 U.S. 49, 52 (1949).43 T. 58:11-22 ("Mr. Moses has, since buying this house,

continued to maintain that portion of the property, because he

was under the understanding that that was his property. The

Homeowners' Association was under the understanding that it was

his property. All of his neighbors are still giving Mr. Moses

grief because he's not maintaining his property. And all of



Page 17

For this additional reason, Petitioner respectfully requests

this Honorable Court to GRANT Certiorari.

4. The Opinion of the Court of Appeals Produces aManifestly Unjust Result

As noted above, the builder and the HOA are the same entity,

namely, the Respondent. It is undisputed that Respondent

obligated Petitioner to maintain the right-of-way that abuts

Petitioner's lot.44

Respondent threatened that if Petitioner

failed to repair the damage that Respondent caused, then

Respondent would impose monetary penalties on Petitioner.45

It is indisputable that the threat of such monetary

penalties, which are directly tied to the home itself, adversely

affects a homeowners' enjoyment of his home. This is exactly

what happened in this case: Petitioner's enjoyment of his own

home was detrimentally affected by the obligation that Respondent

imposed on Petitioner due to the damaged land. Ample evidence,

including Petitioner's affidavit, was submitted to show the

detrimental effect on Petitioner's enjoyment of his home.46

these individuals that have maintained that this is Mr. Moses'

property are signatories to the covenant. And those facts need

to be viewed in the light most favorable to Mr. Moses"). R . 68

(First Moses Affidavit, ¶¶ 19 ("I take great pride inmaintaining a beautiful yard") and 20 ("As such, I have

attempted to keep immaculate care of my yard")).44 T. 58:11-22. R . 368-370, 400-402. See, Exh. D, appended

hereto.45 R . 66-67 and 71-72.

46 T. 58:11-22 ("Mr. Moses has, since buying this house,

continued to maintain that portion of the property, because he

was under the understanding that that was his property. The



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Petitioner respectfully submits that it is manifestly unjust

to deny Petitioner the right to prevent others from damaging the

right-of-way that forms a portion of Petitioner's yard, when that

very damage and threat of financial penalties adversely affects

Petitioner's right to the enjoyment of his own home.47

Here, it is especially unjust, since: (a) it was Respondent

that repeatedly damaged Petitioner's yard; and (b) it was

Respondent that cited Petitioner for the damage done by

Respondent. By permitting Respondent to financially penalize

Petitioner for the damage, the Court of Appeals punishes

Petitioner for Respondent's wrongful acts. In other words, the

Opinion of the Court of Appeals produces an unjust result by

rewarding the wrongdoer and denying the aggrieved any remedy.

Such a result is fundamentally unjust, and should not be

permitted by this Court. This Court should not permit the legal

system to be used as such an instrument of injustice.48

For this additional reason, Petitioner respectfully requests

that this Honorable Court GRANT Certiorari.

Homeowners' Association was under the understanding that it was

his property. All of his neighbors are still giving Mr. Moses

grief because he's not maintaining his property. And all of

these individuals that have maintained that this is Mr. Moses'

property are signatories to the covenant. And those facts need

to be viewed in the light most favorable to Mr. Moses"). R . 68

(First Moses Affidavit, ¶¶ 19 ("I take great pride in

maintaining a beautiful yard") and 20 ("As such, I have

attempted to keep immaculate care of my yard")).47

OCGA § 51-9-1.48

As inscribed in this Court's hallowed halls, Fiat Justitia,



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B. This Court should Grant Certiorari to Correct the

Numerous Errors of the Court of Appeals

In affirming the trial court's grant of summary judgment,

the Court of Appeals commits numerous legal errors. First, the

Court of Appeals fails to view all facts in the light most

favorable to the non-moving party. Namely, the question of

actual possession is a question of fact that should have been

viewed in favor of Petitioner on summary judgment. Secondly, the

Court of Appeals overlooks undisputed material facts, which

evidence that the damaged property affects the value of

Petitioner's home. Additionally, the Court of Appeals overlooks

controlling statutes, which, if considered, would require a

different result.

1. Actual Possession Under OCGA § 51-9-3, a Statute

which the Court of Appeals Overlooks, is a

Question of Fact that Cannot be Disposed of on

Summary Judgment

The Court of Appeals wholly ignores OCGA § 51-9-3,49

which,

if considered, would require a different judgment than that

rendered. Namely, the Court of Appeals recites: "in light of our

rulings herein with respect to Moses's lack of legal interest in

the right of way, the facts Moses points to, such as his mowing

of the area, or another property owners' opinions with respect to

Ruat Caelum.49

Petitioner expressly cited this statutory provision to the

Court of Appeals in both the Appellate Brief and in the Brief

in Support of Appellant's Motion for Reconsideration. The

Court of Appeals, however, wholly ignored OCGA § 51-9-3.



Page 20

Moses's legal interest in the land, are not sufficient to create

in Moses a legally cognizable possessory interest in the public

right of way."50

The Court wholly ignores the statutory provision of OCGA §

51-9-3, which is directed to actual possession, which is a

factual inquiry.51

OCGA § 51-9-3 recites that "[t]he bare

possession of land shall authorize the possessor to recover

damages from any person who wrongfully interferes with such

possession in any manner."52

In other words, not only does the

Georgia Code address possessory interest (under OCGA § 51-9-2),

the Georgia code also addresses actual possession (under OCGA §

51-9-3).

Petitioner advances his case under OCGA § 51-9-3,53

yet the

Court of Appeals wholly ignores OCGA § 51-9-3 by dismissing all

of Petitioner's factual indicia of actual possession.54

In other

words, rather than viewing the evidence to see if Petitioner had

actual possession, the Court of Appeals begins with the

conclusion that Petitioner did not have a possessory interest

(OCGA § 51-9-2) and, from there, summarily concludes that an


App. LEXIS 811, *9 (July 10, 2007).51

Housing Authority of Atlanta v. Famble, 170 Ga. App. 509, 520(1984); Friendship Baptist Church, Inc. v. West, 265 Ga. 745,

746 (1995) (If the possession is not clearly evident, as in

enclosure or cultivation, then "possession becomes a question

of fact for the jury").52 See, OCGA § 51-9-3 (emphasis supplied).

53 See, Petitioner's Appeal Brief at 15, 26, and 27.


App. LEXIS 811, *9 (July 10, 2007).



Page 21

analysis of actual possession (OCGA § 51-9-3) is unnecessary.

Such an analysis places the cart before the horse, insofar as it

begins with the conclusion and then summarily discounts the

facts, which should have been viewed in the light most favorable

to Petitioner.

Insofar as actual possession under OCGA § 51-9-3 is a

distinct inquiry from possessory interest under OCGA § 51-9-2,

the Court of Appeals cannot simply ignore the factual indicia of

actual possession under OCGA § 51-9-3, regardless of its

conclusion on possessory interest under OCGA § 51-9-2. This is

especially so on summary judgment, when all facts (including

whether or not Petitioner actually possessed the damaged land)

must be viewed in favor of the non-moving party (i.e.,

Petitioner).

"Actual possession of lands may be evidenced by enclosure,

cultivation, or any use and occupation of the lands[,]"55 and

since actual possession is a separate factual legal inquiry from

ownership or legal possessory interest, the Court was required to

consider Petitioner's factual indicia of actual possession in the

light most favorable to Petitioner, and not simply discount it as

being irrelevant.

The factual indicia of possession, which the Court of

Appeals ignores, includes:

(1) Respondents' admission that the pictures of the damaged

55OCGA § 44-5-165.



Page 22

property56

(see Exh. C) were of Mr. Moses' home and Mr.

Moses' yard.57

(2) Petitioner's affidavit, in which Petitioner noted his

immaculate maintenance of his yard, including the damaged

property.58

(3) Respondent's admission that the Homeowners' Association,

which is operated by Respondent, indicated that the damaged

land was Petitioner's land.59

(4) Respondent's admission that Petitioner's neighbors considered

the damaged property to be Petitioner's property.60

(5) Respondent's admission that Respondent considered the damaged

property to be Petitioner's property.61

56 R . 492-510.

57 R . 377, 411 (Traton's Second Admissions, ¶¶ 137 ("Admit that

the pictures of Exhibit A show Mr. Moses' home"; "Defendant

admits the allegations contained in Request for Admission No.

137") and 138 ("Admit that the pictures of Exhibit A show Mr.

Moses' yard"; "Defendant admits the allegations contained in

Request for Admission No. 138")).58 T. 58:11-22 ("If we're looking at just the damage to the

property, it's not just the portion of the property that is on

the other side of the curb. It's actually the property that's

contiguous to Mr. Moses' lot. And, again, Mr. Moses has, since

buying this house, continued to maintain that portion of the

property, because he was under the understanding that that was

his property. The Homeowners' Association was under the

understanding that it was his property. All of his neighbors

are still giving Mr. Moses grief because he's not maintaining

his property. And all of these individuals that have

maintained that this is Mr. Moses' property are signatories to

the covenant. And those facts need to be viewed in the light

most favorable to Mr. Moses"). R . 68 (First Moses Affidavit,

¶¶ 19 ("I take great pride in maintaining a beautiful yard")

and 20 ("As such, I have attempted to keep immaculate care of

my yard")).59 T. 58:11-22. R . 368-370, 400-402 (Traton's Second Admissions,

¶¶ 25 and 27-55 ("The second area in violation is the frontright corner of your yard (looking from the street at your

home)").60 T. 58:11-22. R . 368-370, 372-374, 400, 402, 404-4-5, 407

(Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100-103

(e.g., "The fact that you have decided to refuse to mow this

portion of your yard has upset your surrounding neighbors, and

is a violation of the CC&R's")).61 T. 58:11-22. R . 368-370, 372-374, 400, 402, 404-4-5, 407



Page 23

(6) Defendants' Request for Entry Upon Land for Inspection, in

which Respondents and counsel for Respondents requested

Petitioner's permission to enter upon the damaged land for

inspection.62

(7) Petitioner's refusal to grant access to the land.63

(8) The threat by Respondent (HOA) to impose monetary fines on

Petitioner if Petitioner failed to maintain the right-of-

way.64

All of these facts supporting actual possession should have

been taken as true, and Petitioner's evidence of actual

possession, which is a factual inquiry, should not have been

disposed of on summary judgment. The Court of Appeals, in

affirming the grant of summary judgment, contravenes well-

established precedent that prohibits courts from engaging in

fact-finding on summary judgment.

Since the Court of Appeals errs in affirming the trial

court's fact-finding on summary judgment, Petitioner respectfully

requests this Court to GRANT Certiorari to correct the legal

errors from the Court of Appeals.

(Traton's Second Admissions, ¶¶ 25, 55, 72, 78, 95, and 100-103

(e.g., "As for your yard issues, simply stated, Traton Homes

has fixed your corner many times in the past due to the fact

that it seemed reasonable to assume that the developer's large

equipment trailers ran over your curb and placed a rut in yourgrass")).

62 R . 179-180 (Defendants' Request for Permission to Enter Upon

Land for Inspection).63 T. 51:10-22.

64 T. 58:11-22. R . 368-370, 400-402 (Traton's Second Admissions,

¶¶ 25 and 27-55 ("If these two violations are not corrected the

Homeowners Association has the authority to remedy the

violations and charge your home for the expense")).



Page 24

2. In Determining Standing, the Court of Appeals

Overlooks Undisputed Material Facts: Namely, that

the Damaged Right-of-Way Detrimentally Affects the

Value of Petitioner's Home and Petitioner's

Enjoyment of His Home

Both Parties agree that the condition of the right-of-way,

which is contiguous to a homeowners' lot, affects the homeowners'

enjoyment of his home.65

Yet, the Court of Appeals finds that

"Moses has identified no diminishment in his right of user [sic]

or enjoyment with respect to his own property . . . ."66

In

overlooking the fact that Petitioner's enjoyment of his land is

diminished by the damaged right-of-way, the Court of Appeals

overlooks a material fact.

Petitioner has the right to prevent others from damaging

property that affects the value of his home and his right to

enjoyment of his home.67

Here, it is undisputed that the

condition of the right-of-way affects the value of Petitioner's

home.68 Indeed, the homeowners' association's threat to impose

monetary penalties on Petitioner's home69

detrimentally affects

Petitioner's enjoyment of his home.

By showing that the damaged right-of-way detrimentally

affects the value of his home and his enjoyment of his home,70

Petitioner has proven a real harm to his own property right. For

65 T. 49:13-16; T. 50:3-8; T. 41:11-21.


App. LEXIS 811, *7 (July 10, 2007).67

OCGA § 51-9-1.68 T. 49:13-16; T. 50:3-8; T. 41:11-21.

69 R . 66-67 and 71-72.

70OCGA § 51-9-1.



Page 25

this reason, Petitioner has standing to bring an action on the

very property that affects the value of his home.71

The Court of Appeals errs in overlooking this critical fact,

and holding that Petitioner has no standing to bring a trespass

action for the damaged yard. This Honorable Court should GRANT

Certiorari to correct that legal error.

III. CONCLUSION

For at least the reasons set forth above, Mr. Moses

respectfully requests that this court GRANT Petitioner's Petition

for Writ of Certiorari.

[SIGNATURE TO FOLLOW]

17 August 2007.

Respectfully submitted,

Sam S. Han

Sam S. Han


SAM HAN, P.C.

330 Bloombridge Way

Marietta, GA 30066

Phone: (404) 514-8237

email: [email protected]

71OCGA § 51-9-1.



EXHIBIT A

(Opinion from the Court of Appeals)



















Exhibit B

(Court of Appeals, Denial of Motion for Reconsideration)



EXHIBIT C

(From R. 493-510)



EXHIBIT D

(From Moses First Affidavit, R. 66-67)




STATE OF GEORGIA

CHRISTOPHER MOSES ]

Petitioner, ] Supreme Court Case No. ________

v. ] Court of Appeals Case No. A07A1474

TRATON CORP., et al. ]

Respondent. ]

CERTIFICATE OF SERVICE AND FILING

This is to certify that on this day I filed with the Court

one (1) original and seven (7) copies, and served the within and

foregoing PETITION FOR WRIT OF CERTIORARI upon the following via

first class mail, postage prepaid, and properly addressed as

follows:

J. Kevin Moore, Esq.

Attorney for Defendants

Moore Ingram Johnson & Steele

192 Anderson Street

Marietta, Georgia 30060

[SIGNATURE TO FOLLOW]

17 August 2007.Respectfully submitted,

Sam S. Han


SAM HAN, P.C.

330 Bloombridge Way

Marietta, GA 30066

Phone: (404) 514-8237email: [email protected]

Documents

MOSES Petition for Writ of Certiorari FINAL